Legal Briefing

Immigration | 01 April 2013

Last week, the government excitedly announced that ‘net migration had fallen by 36% in the year up to June 2012’.

The claim was repeated on the BBC’s Question Time by Claire Perry MP, on the day of the Eastleigh by-election, in what was clearly a stage-managed announcement to try to snatch some last-minute votes from Nigel Farage’s UKIP – who advocate a withdrawal from the EU.

The difficulties with such an announcement are threefold. The first is that they are designed to appease a certain type of voter. The second is that they are alarmist and dissuade potential migrants from coming to the UK because of the perception that the process is too problematic. Thirdly, a closer look at both the rhetoric and the figures suggest that the sums don’t quite add up.

The government aims to reduce ‘net migration’ below 100,000 by 2015. This policy is intrinsically linked to the overriding aim of the present government – budget deficit reduction. The blunt idea being that less migrants means less unrest about foreign workers taking British jobs. That’s not to say that the more traditional elements of the Conservative party aren’t fundamentally opposed to various forms of immigration, but, in the present climate, the policy is about some form of appeasement to the squeezed masses.

I suppose a lengthy debate on George Osborne’s fiscal policy can wait until I am next guest writer of Magrath LLP’s periodical in The In-House Lawyer, if indeed such a time ever comes, but it is also significant that the government’s plan is to reduce net migration below six figures by 2015 – the year of the next general election.

It is the phrase ‘net migration’ which is key.

To take the figures at face value is to accept that government policy has been an overriding success and that the number of migrants has been salami-sliced. This is not the case. In fact, the 36% figure is misleading.

A chance meeting with a policy adviser at a media organisation this week brought up the topic of foreign students. UK universities are, I’m told, unhappy with the present immigration rules as they have resulted in a lower number of foreign students coming to the UK at a time when university budgets are squeezed and increasingly reliant on the full fees of foreign students.

A cursory glance at the Home Office figures on student visas showed that the number of visas issued in 2012 was 20% lower than in 2011, prior to the abolition of the popular post-study work visa, which many universities relied upon as a key selling point to prospective foreign students.

Now put this together with the announced reduction in net migration – which measures both the incoming and outgoing flow of people to the UK. If the number of student visas issued is lower as at the last set of figures, then at the end of the course, or say, after a period of post-study work, the net emigration of foreign nationals three years down the line will also be lower. Effectively, the short-term resultant reduction in immigration may actually be reversed by the emigration figure in 2015 rendering the whole set of figures unreliable.

It’s fair to say that if we at Magrath, as well as the wider political commentariat have worked this out, there’s a good chance the government have too – which is why further measures are anticipated in advance of 2015.

The recently published ‘statement of intent’ makes some adjustments to the codes of practice for skilled workers. The changes will be rolled out on 6 April 2013. The timing of applications for restricted certificates of sponsorship in March and April will also be affected. These changes will not dramatically affect the criterion on which PBS applications are made and determined.

CODES OF PRACTICE FOR SKILLED WORKERS

The codes of practice are primarily used in Tier 2 (General) and Tier 2 (Intra Company Transfer) categories, but can also play a role in some parts of Tier 5, post-study workers switching into Tier 1 (Entrepreneur) and work permit holders applying for settlement.

The government commissioned the Migration Advisory Committee (MAC) to review the codes of practice, who then in turn published a detailed report on 17 October 2012. The statement of intent is the government’s responses to those recommendations set out by the MAC.

CHANGES TO THE LISTS OF SKILLED OCCUPATIONS

The MAC recommended an updated list of occupations skilled to National Qualifications Framework (NQF) Level 6 using a new Standard Occupational Classification 2010 system. The list does not make any changes to the minimum skill threshold which remains at NQF Level 6. MAC recommended that the government release an updated list of PhD-level occupations, workers in these occupations have a higher priority under the Tier 2 limit, a light resident labour market test (RLMT) and are exempt from the £35,000 earnings threshold for settlement applications (to be applied from April 2016). The codes of practice will now be presented in a single document rather than split by industry.

CHANGES TO SALARY REQUIREMENTS

The minimum salary threshold across Tier 2 has been unchanged since April 2011 and will therefore be increased in line with wage inflation.

The minimum appropriate rates for skilled workers in each occupation are being simplified and updated to reflect changes in pay for settled workers.

CHANGES TO THE WAY THE RLMT IS CONDUCTED

The government has accepted the MAC’s recommendations that:

the current rules on the content of job advertisements should remain unchanged;

advertisements should be written in English (or Welsh for appropriate vacancies in Wales) and advertised for the current 28 days;

The current prescriptive lists of specified publications (currently found in each code of practice) should be replaced with a set of simple criteria for identifying suitable media.

These changes simplify the RLMT requirement, and provide an overarching RLMT for all roles regardless of the code of practice.

The government has retained the requirement to advertise using the Universal Job Match (or Jobcentre Plus) service, for all roles under £71,000 (previously £70,000). The new criteria will allow the RLMT to be carried out by advertising in any one of the following media in addition to Jobcentre Plus online service.

Newspapers

Must be marketed throughout the UK, or throughout the whole of the devolved nation in which the job is located, and published at least once a week.

Professional journals

Must be available nationally through retail outlets or through subscription, published at least once a month, and related to the nature of the job.

Websites

Must be one of the following:

an online version of a newspaper or professional journal that would satisfy the criteria above; or

the website of a prominent professional or recruitment organisation, which does not charge a fee to jobseekers to view job advertisements or to apply for jobs via those advertisements; or

if the sponsor is a multinational organisation or has over 250 permanent employees in the UK, the sponsor’s own website.

If the RLMT is required, a position must be advertised in two separate media, therefore, if the role is exempt from the Jobcentre Plus requirement, then two other fora must be selected. These can both be internet based.

The milkround provision for graduate recruitment is being retained and, if the sponsor carries out the RLMT in this way, then they will need to visit at least three UK universities, advertise in one of the listed websites (ie jobs.ac.uk; milkround.com), and advertise in at least one other medium specified for the RLMT.

TRANSITIONAL ARRANGEMENTS/FUTURE CHANGES

If a sponsor assigns a Certificate of Sponsorship before 6 April 2013, the old codes of practice will apply. The date the individual makes the application is therefore irrelevant (assuming the certificate is used within three months).

The timing for the restricted certificate of sponsorship allocation is being amended for April 2013; therefore requests must be made between 6 April and 17 April 2013, with decisions made on 19 April 2013.

The Home Office intends to update the appropriate salary rates for occupations and overall minimum salary on an annual basis going forward.

CURRENT GOVERNMENT IMMIGRATION POLICY

While the MAC proposals are both sensible and logical, and it says much for the UK Border Agency that they have broadly implemented the recommendations, the current government’s overall policy is simply increasing the already unmanageable workload heaped upon civil servants at the Home Office. With every new set of rules and adjustments comes the inevitable challenge and subsequent reappraisal of how the rules are interpreted and to whom they should or should not be applied.

At Magrath LLP, we hear our clients’ concerns on a daily basis, and the prospect of the UK withdrawing from the European Union or the European Convention on Human Rights (ECHR) is a major issue at present. Chris Grayling, the justice secretary, has been quoted as saying that the Conservatives, should they win a majority at the next election, would abolish the Human Rights Act 1998, while the home secretary, Theresa May, is said to have been pressing for a manifesto pledge that Britain will withdraw from the European Convention completely.

Late last year, the Conservative MP and attorney general Dominic Grieve QC expressed his concern that a UK phased withdrawal from the European Court of Human Rights would result in Britain becoming a ‘pariah state’, with Belarus the only other European country not to have signed the ECHR. The Liberal Democrats, minority members of the coalition government, are presently blocking any plans to make policy on the European Convention, and there is also strong opposition within the Conservative party to any proposed moves. With the prime minister having promised a referendum on EU membership, however, there is no question that the coming years will be absolutely telling in predicting future immigration policy.

What cannot be in doubt is that any threat to the Human Rights Act or the ECHR in the UK is particularly damaging to the UK’s reputation and the prime minister’s oft-repeated statement that ‘Britain is open for business’. It is cruelly ironic that a Conservative prime minister, Winston Churchill, was instrumental in the creation of the ECHR following the Second World War – and, while it is fair to say that the present frustrations and criticisms of the way the convention operates were unforeseen, the principles that the ECHR enshrines should be protected fiercely.

Despite political sound bites and pronouncements of right-wing publications, there is no prospect of the United Kingdom withdrawing from the European Convention in the immediate future, certainly up until May 2015 when the next general election will be called. Sadly, it is difficult to predict exactly what might happen if the Conservative party were to secure a majority in 2015, but the Eastleigh by-election result would suggest at this stage that such an outcome is unlikely.

While it is true that there are increased restrictions on the eligibility of PBS migrants to obtain indefinite leave to remain and capped limits of visas available year on year to both individuals and corporate bodies, and the rules regarding applications for spouse/family members to join visa holders in the UK have been tightened, there remain plenty of routes available to those wishing to come to the United Kingdom or remain here.

We feel it is important that we address the recent issues surrounding immigration that have made headlines and will be happy to address any specific queries from readers should they arise.